On September 20, Kingston city council will make a decision on whether to amend a by-law to permit IN8 Developments to build a 15 storey building — seven storeys higher than the official plan.
The vote will be important for downtown and the consequences significant. As our elected councillors grapple with their decision, it will be vital that their vote be seen as acting in the public interest. According the Whig Standard, Councillor Adam Candon is a real estate agent who had a website that until a few days ago advertised the condominium. Does his professional work put him in a conflict of interest?
According to s. 5 of the Municipal Conflict of Interest Act, the obligation is on the part of the councillor to declare a conflict. And therein lies a problem. In this case, Councillor Candon needs to think if voting on the amending a by-law to build a 15 storey building affect his “direct or indirect pecuniary interest”? If it does, he should exempt himself from the vote. I have no doubt that many, if not most, councillors exercise careful judgement when they decide to declare a conflict. And I have no reason to think that Councillor Candon would behave otherwise. But the problem is this is not a matter that should rest with an individual councillor.
The Municipal Conflict of Interest Act at a scant six pages may not provide adequate guidance for city legal staff or councillors to be prudent in their decision-making. At the end of the day, it’s up the councillor to decide if he or she is in a conflict of interest. But it shouldn’t be.
In Toronto, the city has an Integrity Commissioner who is an arms length, independent officer appointed by Council. He or she provides advice to Council on conflict of interest matters. (Fun fact: Toronto named Queen’s professor and Kingston resident David Mullan as its first Integrity Commissioner). If we had one, the decision about whether Councillor Candon was in a conflict would not lie with him but an independent and neutral umpire.
In addition to reporting on conflict of interest, the Integrity Commissioner has to the power to investigate matters that citizens raise about city council. This can be about personal behaviour as was the case with Rob Ford or whether a mayor gave preferential treatment to former campaign staff, an allegation made about John Tory (ultimately unfounded). The real value of this office is that in making its rulings it educates the public by publishing reports that provide transparency and reasons for actions, something that does not exist now.
The idea of having an Integrity Commissioner is not new to Kingston. The previous city council in Kingston voted 7-6 to proceed to hire one but in a unanimous 12-0 vote, this was “swiftly shelved by the new council” according to Bill Hutchins writing in Kingston Heritage. And I think that’s unfortunate.
The flaw at that heart of the Municipal Conflict of Interest Act is to assume that it’s okay for a councillor to make a decision about his or her conflict of interest. In a modern, democratic system, this seems positively archaic.
The motion to amend the by-law passed 7-6 in favour allowing the Capitol project to proceed. Councillor Candon did not declare a conflict in that vote. Though this post was written before the vote, after the vote this got some attention on Twitter as a potential solution to the controversial outcome. Following that, the Mayor said that he would ask council to support the creation of a Integrity Commissioner.
This post was updated and published as an op-ed in the Whig Standard on September 28, 2016.
At a subsequent Council meeting on Tuesday October 4, Council overturned its previous unanimous vote to not proceed with an Integrity Commissioner by voting unanimously to support one — ironically an exact inverse of their previous unanimous vote. Every single councillor had changed his or her mind.